MERCANTILE LAW DEPARTMENT.

REPORTS, DECISIONS &c.

CHARTER MORTGAGES-DECISION OF THE COURT OF ERRORS-IMPRISONMENT FOR DEBT.

CHARTER MORTGAGES.

THE following decision, lately made in the Court of Errors of the state of New York on an important point, is abridged from a report of the case in the New York American, and will be read with interest.

Court of Errors-Smith and Hoe vs. Jacob Acker. This was an action brought to recover from the defendant, who is sheriff of New York, a printing press and other moveables, mortgaged to the plaintiffs by one Bell, and levied upon by him under an execution as the property of said Bell.

Bell is a printer, and the plaintiffs manufacturers of printing presses, and supplied Bell with his presses and other printing materials, for which he was indebted to them on the 26th of March, 1837, in the sum of 10,000 dollars; to secure the payment of which, he on that day executed a mortgage to them on the said press and other moveable property. The mortgage was duly filed in the office of the register of New York, according to the statute, on the 28th of March, 1837. The said printing press and property mortgaged remained in the possession and use of Bell, the mortgagor. On the 20th of January, 1838, the sheriff seized the said property by virtue of an execution, although he had notice of the existence of the plaintiffs' mortgage.

At the trial below, the plaintiffs offered to prove that the mortgage was made for a full and valuable consideration, and for the purchase money; and that Bell, the mortgagor, was a printer, and required the use of the mortgaged property as a means of paying said debts and his other creditors; and that said mortgaged property could not have been sold at any time from the execution of the mortgage to the seizure by the sheriff without hazard of great loss to the plaintiffs, and injury to Bell. They also proved the filing of the mortgage according to the statute.

The judge, in the court below, decided that the plaintiffs could not recover, because the mortgage was fraudulent, being unaccompanied by possession, or a sufficient reason in law for not taking possession-and ordered a nonsuit. The Supreme Court, in affirming this decision, gave no other reason than referring to the case of Bissell vs. Hopkins, and other decisions of their own court, in cases of personal mortgages and sales, or assignments unaccompanied by possession.

Mr. Attorney-general Hall, on the part of the plaintiffs, argued that the question of fraud was made by the statute a question of fact-that the court could exclude no testimony which went to show that the transaction was in "good faith"-and that the court could not judge as a question of law of the sufficiency of such evidence, upon which the statute itself forms the issue. He further stated the history of the law, and commented upon its reasons of public policy as applied to the present case.

Mr. Mott, for the defendant, relied upon the repeated decisions of the Supreme Court, and the general policy of the law to prevent false credits.

When the cause came up for decision, the chancellor declined giving any decision on the merits of the question, because he considered the case disposed of by the statute authorizing a levy on the equity of redemption of personal property. He also intimated that the mortgage was not or might not be valid, in consequence of an interval of two days between its execution and filing.

Senators Paige and Wager supported the views of the chancellor in this particular case, though the latter dissented from the doctrine of the Supreme Court as to personal mortgages.

Mr. Verplanck said, that as it appeared from the record that the sheriff had not levied upon the equity, but upon the property itself as Bell's, and nad so given notice on the trial, he had waived that right: he was clear the interval between the execution and filing of the mortgage, did not render it void in itself, but merely inoperative, as to any right of creditors attaching before the filing, which did not apply to this case. He did not deny, and perhaps some decisions cited by the chancellor went upon the ground, the circumstances of a mortgage on personal property being long dormant before it was filed, might be presumptive evidence of collusion to a jury or court of equity. On the general question, Mr. Verplanck said, he referred in substance to his own opinion in this court, in 20th Wendell, Stoddard vs. Butler, as applicable alike to assignments and to chattel mortgages. He said that when there was proof of a fair consideration for the sale or mortgage, actually paid, reasonable publicity, or in case of sale, of filing the mortgage, which was such publicity in that case, and probable reasons for leaving the property in the hands of the mortgagor, such as honest men might ordinarily act from, whether of family kindness, or prudence and friendship in business; this made out sufficient evidence for a jury to judge whether the presumption of fraud was repelled.

Mr. Verplanck said the intent and operation of law was not to make leaving possession with the mortgagor or vendee, conclusive evidence of fraud, but to throw the burden of proof of there being no intention of fraud on the party claiming under the mortgage or assignment.

The lieutenant-governor and senators Talmadge, Hopkins, Edwards, Maynard, and Furman, delivered opinions in which they expressed views concurring with those of Mr. Verplanck. The judgment of the Supreme Court was reversed-22 to 4.

This decision is one of great importance, entering as it does into every branch of business which the open question has kept in an uneasy and doubtful condition, in relation to assignments, mortgages, &c., of personal property, and the winding up of large concerns under assignments.

IMPRISONMENT FOR DEBT.

It will be perceived by the following act that the legislature of New Hampshire have abolished imprisonment for debt upon all contracts made after the 1st of March next. We are rejoiced to see even this first step taken. But why not abolish imprisonment for debt entirely? Why allow it a lingering death, showing its hideous form, writhing convulsively in its agonies for five or six years, until, perhaps, the statute of limitations shall have released its victims from its grasp? It cannot be for a moment supposed that the right of imprisonment forms any part of the contract. In states where the statute declares that no man shall be arrested on a civil contract, it may well be contended that upon contracts made in such states, the right of arrest is taken away even in states where arrest is allowed. But we are yet to learn that the right of arrest upon a civil contract is such a right that it may not be swept away by the legislature like chaff. Such has always been the opinion, and the legislative course in New York. This whole subject is undergoing a winnowing process in the United States, and usages which have been practised for ages will no longer be tolerated by an enlightened public opinion. Our people are becoming convinced of the truth of the Indian's simple remark, when shown a debtors' prison, "Indian can catch no skins there!" They are becoming satisfied that a prison is not the place for a poor debtor to retrieve his fortune. Punish for fraud, and for crime; but let misfortune go free, and "the blessing of those who are ready to perish" will follow you.

"Section 1. Be it enacted by the Senate and House of Representatives in General Court convened, That no person shall be arrested, held to bail, or imprisoned on any mesne process or execution founded upon any contract or debt which shall accrue or be made from and after the first day of March next. "Sec. 2. And be it further enacted, That all acts and parts of acts inconsistent with the provisions of this act, be and the same are hereby repealed.”

THE BOOK TRADE.

1. Applications of the Science of Mechanics to practical purposes. By JAMES RENWICK, LL. D., Professor of Natural and Experimental Philosophy and Chemistry in Columbia College. New York: Harper & Brothers. 18mo.

us.

It is a frequent and true remark, that our own age, whatever may be its deficiencies in other respects, is distinguished for its practical character. That fact is striking in the application of the principles of science to useful objects by the preparation of books. In the work of Enfield upon natural philosophy, now we believe used as a text-book in our colleges, we have a valuable, though in many respects theoretic, treatise upon the various mechanical powers, but they are not applied to the subjects that we constantly see in operation around Hence we are enabled, through that work, to become acquainted only with the elements of the science. The volume before us is of a more practical character. It traces not only the general principles of the sciences, but their application to the numerous mechanical enterprises of the day. We here have not only a description of the various machines now in use, but the action of the screw, the lever, the wedge, the spring, and other instruments, as they are applied to useful purposes, such as mining, lifting, navigation, railroads, and the different species of manufactures. We hail the period when the education of our students, while adorned with all the graces of classical literature, shall be also imbued with a more practical spirit; for we shall then have more of such men as Nott, and Olmsted, and Pierpont, than we now have. The present volume is a very comprehensive compendium, and is appropriately illustrated by plates, that render the matter perfectly intelligible. It may be studied by all with great advantage.

2. Political Economy: its objects, rules, and principles, considered with reference to the condition of the American People. With a summary for the use of Students. By A. POTTER, D. D., Professor of Moral Philosophy in Union College. New York: Harper & Brothers. 18mo. pp. 318. 1840.

Professor Potter has been long known as an able and eloquent clergyman of the Episcopal Church, and a professor in Union College. He has, in this volume, judiciously devoted a portion of his time to the compilation of a work on the long-canvassed subject of political economy. His aim has been to compress the most prominent principles of that science that are adapted to the position of our own country into the smallest compass, suited to popular use and the studies of our seminaries; leaving out of view the various discussions upon disputed points, which abound in the larger works upon the same subject. In this task he has succeeded. Little that is new or strange can here be found, for it was his design only to spread out the more obvious elements of the system in a clear and comprehensive form. But the system is so amply unfolded, that little is left to the learner to be descried, although a considerable portion is copied from another work, which the author acknowledges in his preface. We like to see such men employing their time and talents in the dissemination of popular intelligence; for such books, compiled in a cheap form, cast broad gleams of light where more expensive works cannot enter, and they are peculiarly adapted to the cast of our free institutions.

3. The Life of John Wickliffe, D. D. By MARGARET COXE. Columbus: Isaac N. Whiting. New York: C. Henry. 16mo. pp. 272. 1840.

This interesting biography presents us a satisfactory account of this stern and distinguished reformer. Without attempting a vivid sketch of the times in which he lived, it still gives the current of facts in a plain style, with such comments as seemed justified by the subject.

4. The Airs of Palestine, and other Poems. By JOHN PIERPONT. Boston: James Munro & Co. 18mo. 1840.

The

Of the principal poem in this collection, it were superfluous to speak. Nearly a whole generation, upon both sides of the Atlantic, have given to it consenting praise. Though not wonderful for originality, sublimity, or power of excitement, and laying itself open to the charge of monotony, it yet breathes the air of the Hebrew land; it evinces a mind rich in sacred lore, and a poetical spirit bathed in Hermon's dews. But this exquisite contribution to our sacred poetry is a small part of this volume. This book will go to posterity a graceful monument of the spirit of the age. Upon its face stands forth in letters that no time can obscure, the fearless and wide-spread philanthropy of its author. reader of another century will catch no small insight into the quick-beating heart of our day in those stirring and eloquent dedication, ordination, charity, emancipation, temperance, and anniversary odes. And we are not willing to believe that even the bitterest prejudice against the writer's opinions or conduct, can prevent many of these spirited and matchless effusions of the lyric muse from passing into the common stock of the religious and philanthropic community, and becoming the chosen, deathless breathing of the general heart. The peculiarity of this volume is its variety. While some of the pieces are manifestly made, as he says, " to order," and therefore will be wanted over and over again, as similar occasions occur, many of them are written with the poet's true inspiration, with a depth of tone and energy of utterance that cannot be mistaken. While some are admirable for classic finish, others again grate upon the ear, and astonish us that a man so susceptible of the richest music of verse, should imagine himself pleased with the filing of a handsaw. But his preface disarms all criticism; and there are pieces in this volume-"My Grave," "The Exile at Rest," "Passing Away," and the like, which soar above all praise. The pieces connected with the mechanical arts are especially happy.

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5. The Heart's Ease, or a Remedy against all Troubles. With a consolatory Discourse, particularly directed to those who have lost their friends and dear relations. By SIMON PATRICK, D. D. New York: D. Appleton & Co. 18mo. pp. 320. 1841.

Rev. Simon Patrick, once Bishop of Chichester, is well known to those who are versed in episcopal theology. A firm supporter of the cause of protestanism against formidable opposition during the reign of James II., learned and industrious, and pure-hearted, he long lived a fair pillar of the Church of England. The reflections with which the work abounds are eminently consolatory, and are conveyed in so clear and beautiful a style, that the feeling which breathes through all its parts, impresses the soul with increased influence. We ought not here to refrain from alluding to the extreme beauty of the mechanical execution of this work. It is published in a style hardly exceeded by the most elegant productions of the English press, and we learn that the publishers are designing to put forth the works of many of the old standard English theological writers in the same beautiful form. Such works will be valuable accessions to our stock of adopted literature.

6. A Treatise on determining the strength of distilled Spirits: with concise Rules in Gauging, &c. By HUGH BRADLEY, inspector of distilled spirits in the city of New York. New York: George F. Nesbitt. 1841.

This book is designed for the use of distillers, gaugers, grocers, &c., and will also be found serviceable to all others engaged in the traffic of spirits. The manner of treating the subject appears to be as judicious as could be expected under the present imperfect system of proving liquors. We fully concur with the writer in his remarks on the proof of spirits, and think it is high time our government should adopt some more general and equitable mode than the one in present use, for regulating this branch of commerce,

7. First principles of Chemistry: being a familiar introduction to the study of that science. For the use of Schools, Academies, and the lower classes of Colleges. By JAMES RENWICK, LL. D., Professor of Natural and Experimental Philosophy and Chemistry in Columbia College. New York: Harper & Brothers. 12mo. pp. 410.

Professor Renwick is well known to the country by his recent work on the steam-engine. The present volume is a very valuable treatise on the science of chemistry, especially adapted to popular use. We know of no work, indeed, that is its superior in conveying a thorough knowledge of its principles. Almost every page is embellished by engravings which illustrate these principles as we go along, so that we have in them combined the advantages of the lecture-room and the laboratory. The practical importance of this science, running into so many forms of business relating to commerce, agriculture, and manufactures, render this work of the utmost value. We can conscientiously commend it as the most satisfactory compendium upon the subject that has yet come within our knowledge.

8. The Life and Writings of Samuel Johnson, LL. D. Selected and arranged by Rev. WILLIAM P. PAGE. In two volumes. New York: Harper & Brothers. 16mo. pp. 322-323.

We

These volumes, comprising the 109th and 110th of Harper's Family Library, embrace a considerable portion of the essays of this literary autocrat and despotic lexicographer, besides a biographical notice of his life. It seemed highly important that the publishers should incorporate into their series a portion of the intellectual efforts of a man who has filled so large and so honorable a space in English literature, and this they have done with full success. have here compressed into two small volumes, the most brilliant productions of his powerful mind, with the facts connected with his life, that are of the greatest interest, together with a judicious commentary upon his peculiar genius. The work is prefaced by an engraved portrait, that serves to add to its solid value.

9. The Life of Oliver Goldsmith: with selections from his writings. INGTON IRVING. In two volumes. Harper's Family Library. Harper & Brothers. pp. 323-313. 1840.

By WASHNew York:

The publishers have exercised a sound judgment in embodying this work in their family library. We need hardly say that they have made the best selection in the compiler, Mr. Washington Irving. We are here presented not only a beautiful and clear biographical account of that eccentric and charming author, but some of his choicest productions in a form accessible to all. The publishers, in the extensive machinery of their establishment, possess great facilities for the circulation of literature and knowledge, and we perceive that they are gathering into their granary the choicest treasures of all countries and all ages, where they may dispose of them at a price adapted to the limited means of the great bulk of our reading population. Their series could hardly have been made perfect, without the life and writings of our favorite Goldsmith.

10. The History of England, from the earliest period to 1839. By THOMAS KEIGHTLEY. With notes by the American editor. Harper's Family Library. New York: Harper & Brothers. 5 vols. 18mo. pp. 322-323-328-317–344. In a former number of this Magazine, we noticed the appearance of an edition of this work in two large octavo volumes. The edition before us is compressed into a convenient and economical form, and is made more valuable by the addition of a copious index, not found in the larger volumes. The publishers have done well in embodying this history in their Family Library, and thus giving it a more extensive and popular circulation.